124 Va. 484 | Va. | 1919
delivered the opinion of the court.
The Atlantic Coast Line Railroad Company complains of a verdict and judgment in favor of Mattie Tyler, in an action to recover damages for personal injuries alleged to have been sustained by her.
The substantial facts as shown by the plaintiff’s evidence are, that she was being driven in a buggy from Manchester to her home in the country shortly after midnight; that when she reached the three tracks of the company crossing Hull street, the gates were up; and that just as the horse crossed the third of the railroad tracks going towards Swansboro, the gate was lowered in front of the horse which prevented him from going further; and that while thus stopped on the track a freight train, coming from the south, which consisted of eighteen cars and an engine, being pushed backwards, collided with the buggy and caused her injuries. The evidence submitted in her behalf also tended to show that although the crossing was fairly lighted, she could not at night see far down the track in the direction from which the train was coming, and that no warning signals of any kind were given.
' The company’s evidence tends to prove that the gates on the Swansboro side of the track were already lowered and that at the time the buggy was driven between the gates on the Manchester side of the track they were being lowered; that the gateman endeavored to prevent the driver of the buggy from going upon the tracks; and that the train was stopped as quickly as it possibly could have been stopped, after the plaintiff’s position of peril was discovered.
1. That the court gave instruction No. 1 for the plaintiff reading thus: "The court instructs the jury that under the ordinance of the city of Richmond it was the duty of the defendant to provide and erect vertical arm gates at this crossing of its track over Hull street, and it was the further duty of the said defendant to erect and maintain the said gates, and to provide for the closing of them at the approach of engines or trains so as to prevent accident and the failure to perform the duty set forth above is negligence; and if you believe from the evidence that the defendant failed to perform the said duty and the said failure was the proximate cause of the accident to the plaintiff, without negligence on her part, then you must find for the plaintiff.”
Upon the whole case, it seems to us that the jury were sufficiently instructed, and that no harmful error is shown.
Affirmed.